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Trampling Over the Sixth Amendment

NKY courts play fast and loose with rules

By Dave Malaska · November 9th, 2011 · News

According to a local public defender, people appearing in two Northern Kentucky courts — particularly the poor — are having their rights violated, and judges are responsible. John Delaney, who heads the public advocacy office that handles cases in Kenton and Campbell counties, says district judges in those counties are violating state and federal law in not appointing legal counsel to defendants who need them.

In short, Delaney says, they’re denying those people one of the bedrock principles of the legal system. 

“It appears the judges just don’t want to slow their dockets down,” he says. “The hearing to appoint counsel would slow down their docket, and if the case goes to trial, which is more likely if an attorney’s involved, it slows down the process even further. So, judges are dramatically under-appointing. But it’s being done at the expense of people’s rights. We have defendants who need legal counsel, but for the sake of expediency, they’re being denied (it).” 

In Kentucky, district courts handle misdemeanor charges as well as preliminary hearings for felony cases, which move to circuit court for trial. By Kentucky statute, defendants in cases facing a fine of more than $500 or jail time have the right to counsel. If judges determine they cannot afford to hire an attorney on their own, they’re supposed to appoint a public defender. But in courts in Kenton and Campbell counties, Delaney says, five district court judges are not taking the time to make sure defendants understand their right to counsel, or are incorrectly determining their eligibility for representation from his office. 

“It leads to pleas that are sometimes to their detriment, Delaney says. “They need legal advice, but they’re not getting it. We’ve raised the issue time and time again, with little result. One judge looked me in the eye and said, ‘I don’t care.’ “ 

As part of the Equal Justice Project, an ongoing national study of the issue, the Kentucky Department of Public Advocacy (DPA) recently compiled county-by-county statistics on cases in which public advocates have been appointed. Over a three-year period, judges appointed counsel to more than 27 percent of misdemeanor cases statewide. 

But not in Northern Kentucky. In all three years, Campbell County and Kenton County had the state’s lowest appointment rates by far. 

Last year, Kenton County judges handled 5,374 misdemeanor cases, and appointed counsel in 501 (9.3 percent of the cases). In Campbell County, a public defender was appointed in only 199 of 3,430 cases, a 5.8 percent rate, according to the study figures. Over the three-year span, those courts had even lower rates: 7.8 percent in Kenton and 4.5 percent in Campbell. 

The judges, however, aren’t moved by the numbers. Judges Ann Ruttle and Douglas Grothaus from the Kenton County District Court and Judge Karen Thomas from Campbell County discount the DPA numbers. 

“We’re not perfect,” Ruttle says. “We’re human, but I’d never deny counsel to someone who qualified for it. In every case, they’ve been read their rights. I look at their financials and if they qualify for a public defender, they’re appointed one.” 

“I appoint public defenders all the time,” Grothaus adds.

“I’m comfortable with my appointment process and the amount of protection of rights in my courtroom. On the other hand, given the budgetary conditions we all live with, I’m not going to be handing out free lawyers when people can afford their own. Maybe the rest of the state is appointing them too liberally. 

“Comparing us to other counties, it’s apples and oranges,” Grothaus continues. “We have different economic and population factors than small, rural counties. Job opportunities are different in Kenton County than other counties, so employment numbers will be different. These numbers are meaningless.” 

That assertion makes Delaney bristle. The stats, he says, include the same factors in every county. Those who pay fines and avoid court or plead out are included in every county’s numbers. 

As far as economic and population factors, he adds, Fayette County (which includes Lexington) and Franklin County (Louisville) are fairly similar in population and have similar economies to Northern Kentucky. Fayette County’s judges have appointed public defenders more than 32.1 percent of their misdemeanor cases. In Franklin, the rate is 17.2 percent. 

“What (Ruttle and Grothaus) are talking about might explain a 4- or 5-percent difference, but it doesn’t account for the difference between 8 percent and 32 percent,” Delaney says. “That’s more than a statistical anomaly. That’s something systemic.” 

According to the DPA, the factors considered in qualifying for a public defender are also in question. Some judges use outdated criteria, according to Delaney — especially the ability to post bond, which until 1999 could be used as a sole reason to disqualify them. More than a decade ago, the Kentucky Supreme Court struck that down.

Employment and assets held are also used in the formula to determine if they qualify, but the degree to which judges depend on them are completely at their discretion, says Rodney Barnes, director of the DPA’s Frankfort office, who also oversees other public defenders throughout the state. 

“There’s supposed to be a discussion,” Barnes says. “Someone might be working at Skyline Chili, trying to support a family. Yes, they’re employed, but that doesn’t mean they’ve got money to hire an attorney. I sat in on one court session when the first thing a judge said to the defendant was, ‘You don’t qualify.’ Of course, they’re not going to question it. A judge just told them so. I never see that in my courtrooms.” 

It’s an issue that has been a point of contention between the DPA and judges for some time. Despite claims by Ruttle and Grothaus that they’ve not heard the issue addressed before, Delaney provided writs to the state supreme court going back several years, arguing defendants were improperly denied representation. He also says judges have thrown him out of court for making the argument. 

Judge Thomas, who also serves as president of the state District Judge Association, also disputes the study’s results but is sympathetic to the issue. 

“I discount their numbers, but not their concern,” Thomas says. “One reason Campbell County’s numbers could be low is we have an extensive diversion program. Some types of cases, we feel, don’t belong in the system. We send them to the diversion program. For those that come to court, we do a recitation of rights three times a morning. If they want an attorney appointed, they need to tell me and then we’ll look at whether they qualify.” 

She adds that the DPA’s numbers don’t coincide with stats compiled by her court’s computer. She suspects the discrepancy is human error — that the study numbers were produced by numbers self-reported by public defenders. 

“Still, I’d hate to think someone is appearing before me who needs an attorney and isn’t getting one,” Thomas says. 

Thomas has been in contact with DPA director John Monahan and has suggested a roundtable with judges and public defense officials to discuss the issue. 

“We need to stop talking around each other,” Thomas says. “I want the court to be fair. Let’s sit down and talk about how we can work better together.”

Other judges — Greg Popovich from Campbell County and Kenneth Easterling from Kenton County — didn’t return telephone calls seeking comment. 

The issue has drawn attention from elsewhere, however. Bob Bourchowitz, a Seattle attorney working with the Foundation to Promote an Open Society, has been looking at appointment figures from Kentucky, Washington and New Hampshire as part of a national study. He’s also sat in on court sessions in Northern Kentucky. 

“This is not a problem unique to Kentucky,” Bourchowitz says, “but I’ve been to courtrooms where there is less attention paid to making sure people understand their rights or assigning them counsel than there should be. The reading of rights were rattled off in 38 seconds. It was terse. For a lay person to understand that information as its presented is unreasonable.” 

He’s also heard one judge tell people he would assume they were waiving their right to a public defender unless they indicated otherwise, and if they declined to plead guilty and accept a deal on the table, the offer would be revoked. 

“It amounts to intimidation,” Bourchowitz adds. “That’s not the law. You can’t assume people waive rights. There has to be a discussion, and that isn’t happening. I find it threatening.”

Norris West, the communications director of the Washington-based National Legal Aid and Defender Association, agrees. The group is keeping an eye on the situation in Northern Kentucky. 

“I can’t think of a more basic right,” West says. “There is no issue we feel more strongly about — it goes back to the Sixth Amendment and series of rulings by the U.S. Supreme Court and state courts.”

On the ground, dealing with the judges every day, Delaney says his office will continue to raise the issue. 

“It really doesn’t matter to us — we have plenty of work,” he says. “We average almost 500 cases a year per attorney in our office, which is well beyond the suggested national average of 250. But we’re talking about basic rights, here. When judges deny counsel to those in need, it violates the law, it violates the Constitution and it violates their ethical duties.”



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